Argument analysis: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states

Posted Wed, November 28th, 2018 2:44 pm by Amy Howe

Petitioner Tyson Timbs outside court after oral argument

Today the Supreme Court heard oral argument in the case of Tyson Timbs, an Indiana man who lost his 2012 Land Rover after he pleaded guilty to drug charges. The state argued that it could seize the car because it had been used to transport drugs, but Timbs countered that requiring him to forfeit the $42,000 car – which he had purchased with the proceeds from his father’s life insurance policy – would violate the Eighth Amendment’s ban on excessive fines, particularly because the value of the vehicle was nearly four times the maximum fine that could have been imposed. The question before the justices today, however, was not whether the forfeiture of the Land Rover was constitutional, but instead whether the Eighth Amendment’s prohibition of excessive fines applies to the states at all. State and local governments are watching the case closely, because fines and forfeitures have become a key source of revenue – bringing in hundreds of millions of dollars each year. By the time oral argument ended this morning, the justices seemed ready to say that the excessive fines clause does apply to the states, even if they don’t say much more than that.

When it was originally enacted, the Bill of Rights – the first 10 amendments to the Constitution – applied only to the federal government; it did not automatically apply to the states. Since then, however, the Supreme Court has ruled that most provisions of the Bill of Rights do apply to the states through the Constitution’s 14th Amendment, which bars states from depriving anyone of “life, liberty, or property, without due process of law.”

Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.”

Thomas M. Fisher, Indiana solicitor general (Art Lien)

Justice Elena Kagan, who sits on the other end of the bench from Gorsuch and whose views are sometimes the opposite of Gorsuch’s as well, appeared to agree. There seem to be two questions here, she told Fisher. One is whether the excessive fines clause applies to the states; the second question involves the scope of the right if it does. “And really,” she suggested to Fisher, “what you’re arguing is about the scope of the right.”

There seemed to be significantly less agreement among the justices on the scope of the right – that is, whether fines like the forfeiture of Timbs’ car do indeed violate the excessive fines clause. Chief Justice John Roberts was unsympathetic, telling attorney Wesley Hottot, who represented Timbs, that Timbs’ Land Rover “was an instrumentality of the crime. This is how he got to the deal place and how he carried the drugs.” If a defendant was carrying the drugs in his car, Roberts stressed, “I think it’s pretty well-established” that the car can be forfeited.

Roberts and Justice Samuel Alito also expressed concern about how courts would decide whether a fine was excessive. Alito asked Hottot whether a forfeiture would be excessive if, instead of a Land Rover, Timbs had been driving a 15-year-old Kia or a $250,000 Bugatti. Roberts chimed in, asking Hottot whether it would matter if a defendant were very wealthy or very poor, so that the same fine would affect him differently.

Wesley P. Hottot for petitioner (Art Lien)

And Justice Stephen Breyer voiced unease about a potential incongruence between long prison sentences for relatively minor crimes, on the one hand, and a bar on substantial civil forfeitures on the other. It “seems odd,” Breyer posited, that the state can send someone to jail for life for stealing a golf club under a three-strikes law, but the state might not, if Timbs prevails, be able to seize the defendant’s Mercedes.

Justice Sonia Sotomayor was more sympathetic to Timbs and other opponents of civil forfeiture. “If we look at these forfeitures that are occurring today,” she emphasized, “many of them seem grossly disproportionate to the crimes being charged.”

Fisher urged the justices to limit the scope of the right and hold that, even if the excessive fines clause applies to the states, it does not extend to cases like Timbs’, involving civil forfeitures of property. But he faced an uphill battle, because to reach that result the justices would have to overrule a 1993 decision holding that the excessive fines clause does apply to civil forfeitures of property that are intended, at least in part, as punishment – something that there did not seem to be any appetite among the justices today to do.

At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.

Given the near consensus on the Supreme Court that the excessive fines clause applies to the states, the justices are likely to say so, but without much more. That could still be good news for Timbs, because two lower courts agreed with him that the forfeiture of the Land Rover was excessive; the Indiana Supreme Court ruled only that the excessive fines clause does not apply to the states at all.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.